The 'patent pending' problem
SO COMMON is the phrase "patent pending" on US goods that Americans can be forgiven if they interpret it as a proud proclamation of success. "Our product is so special, we're in line to win a patent!" In truth, however, all those patents pending are a sign of failure - the failure of the US Patent and Trademark Office to keep up with the torrent of innovation upon which our economy depends.
One million US patent applications are gathering dust today, waiting an average of three years to be examined and ruled upon. That's a problem because despite the widespread notion that patents are about greedy companies gaining monopoly rights, the patent system is primarily a tool of progressive policy making - of sharing information and advancing technology.
Sure, patents confer upon inventors the exclusive right to profit from their inventions, usually for 20 years, and so provide a self-serving incentive for initial investments in ingenuity. Less widely appreciated, though, is that to get a patent the inventor must reveal in detail how the new thing was made. The idea is for other inventors to extend the work without having to start from Square One, thus speeding the creation of next-generation devices and processes.
During the years that it remains unclear whether a patent will issue - and exactly what it will embrace - other inventors steer clear of the field for fear they might eventually be accused of infringement. Innovation slows.
Prolonged patent pendency is one of many problems in the US patent system that the Obama administration and Congress should aggressively address in 2009. Patent examination rules, including the time allotted per application, have not changed since the 1970s, even though inventions today are far more complex. The information technology system that examiners use is antiquated. And the patent office has barely taken advantage of the option of sharing its workload with other patent offices around the world, which today redundantly examine identical applications filed in their respective countries.
Due to these and other problems, patent examiners - highly trained engineers and technology specialists - get so frustrated that, on average, they quit after just three years, about the time it takes to become proficient. Patents that do issue are too often of poor quality, unclear in their descriptions or more expansive than justified. Weak patents trigger expensive court challenges, which infuse uncertainty into the tech landscape, stifle investment, and stall job creation.
Patent reform legislation died last year and Congress should resuscitate that effort. The executive branch can have a big impact on its own, however. It starts with leadership, sorely lacking during the Bush administration. President Obama must appoint a highly skilled director with professional managerial experience, empowered with a clear mandate to apply best business practices to every aspect of the office. The office must revamp its wage and fee structures, introduce more flexible and realistic application-review policies, encourage more telecommuting and work sharing with other patent offices, and prioritize information technology improvements to attract and retain the best examination staff.
The patent office also needs to repair the rift that has grown between itself and the corporations, inventors, and public it serves. Transparency is key. That means asking for and incorporating input from stakeholders as it develops rules, offering better access to patent data and relevant court decisions, and opening to the public its advisory committee meetings to help make innovation a more collaborative process.
A lot has changed since George Washington signed the first patent act in 1790, a year in which the nation's team of three patent examiners approved all three applications it received - for inventions that improved soap-making, candle production, and the milling of flour. Today, nearly 7,000 employees handle more than 460,000 US patent applications each year for inventions as diverse as better hand-held electronic devices, materials that more efficiently absorb the sun's energy, and gene-altered bacteria that can clean up toxins. Any number of these thousands of applications may carry the seeds of renewal for our struggling economy. We owe it to ourselves to assure they get a timely and professional review.
Rick Weiss is a senior fellow at the Center for American Progress.